They just don’t get on… but what can I do?

In Brief

It can be a real­ly dif­fi­cult sit­u­a­tion for an employ­er when two staff mem­bers sim­ply do not get on. Nei­ther is nec­es­sar­i­ly at fault or, alter­nate­ly, both of them are. But what can an employ­er do? An employ­er is not able to make peo­ple like one anoth­er and their antag­o­nis­tic behav­iour can cause hav­oc in the workplace. 

In a recent (sen­si­ble) deci­sion by the Full Bench of the Fair Work Com­mis­sion, the FWC faced an appeal by an employ­ee who had been dis­missed fol­low­ing a year of con­flict with her fel­low employ­ee in the con­fines of a small office. The Full Bench acknowl­edged that the rea­son for the deci­sion was not nec­es­sar­i­ly the behav­iour of the sacked employ­ee but:

…the exis­tence of an inter­per­son­al con­flict in a small work­place which had reached a point where it had become inca­pable of any res­o­lu­tion and was affect­ing the per­for­mance of work and the com­pa­ny’s rela­tion­ship with its customers”.

Impor­tant­ly, it was not found nec­es­sary that the employ­er estab­lish that the sacked employ­ee was the one at fault. The full bench even acknowl­edged that the employ­er had act­ed unwise­ly” in dis­miss­ing the employ­ee in the heat of the moment”. Nev­er­the­less, it upheld the right of the employ­er in that sit­u­a­tion to ter­mi­nate an employ­ee where the pro­longed hos­til­i­ty between the staff was affect­ing the business.

This deci­sion comes at the same time as anoth­er sen­si­ble deci­sion (albeit by a sin­gle com­mis­sion­er and, there­fore, not quite so bind­ing) in response to an employ­ee’s appli­ca­tion for a Stop Bul­ly­ing Order. In the course of con­sid­er­ing the evi­dence of terse exchanges between the employ­ees, the Com­mis­sion­er found that the fact that two employ­ees did not like one anoth­er and behaved in an abra­sive and some­times abrupt man­ner to one anoth­er did not amount to bullying. 

In this instance, the Com­mis­sion­er found that the fact that one employ­ee — in their con­tact towards anoth­er — had been “…upset, exhib­it­ed intol­er­ance or low lev­el anger…” did not con­sti­tute unrea­son­able behav­iour. He fur­ther found that the employ­ees “… prob­a­bly did not like each oth­er, and may have even been mutu­al­ly hos­tile toward one anoth­er”, but that did not amount to bullying.

It is grat­i­fy­ing that of the 500+ appli­ca­tions for stop-bul­ly­ing-orders filed this year – the FWC has only made orders in one of those cas­es, (although there would have been a num­ber of mutu­al­ly agree orders).

Some of the mem­bers of the Com­mis­sion are real­is­ing that employ­ers are not rela­tion­ship coun­cil­lors and can­not make employ­ees best friends. The real­i­ty of all work­ing com­mu­ni­ties is that not all indi­vid­u­als will get on. In fact, many will dis­like each oth­er and that will nev­er change. How­ev­er, affec­tion between staff can­not be the employ­er’s problem.